On appeal from the First District Court of the City of Newark.
For the plaintiff-respondent, Reuben Brown.
For the defendant-appellant, Herman L. Fast.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment rendered in the First District Court of the City of Newark, the judge sitting
without a jury. The action was on an indemnity policy wherein one Lippold was insured "against bodily injury sustained during the life of this policy directly and independently of all other causes through accidental means." Lippold assigned his claim to Lawrence.
The case was settled by the trial judge for the appeal and certified to us in the following language:
"The suit is brought upon a policy of insurance issued by the defendant to the plaintiff's assignor, 'against bodily injury sustained during the life of this policy, directly and independently of all other causes through accidental means. Plaintiff's assignor testified that he is accustomed to playing quoits for exercise and amusement, and has an individual and peculiar form of delivery, which he has always used. There was no testimony to show in what manner the assured's delivery differed from any other delivery. On May 30th, 1927, while in the act of pitching a quoit, assured gave himself or experienced a twist, wrenched his back and fell to the ground, suffering excruciating pain. The medical testimony disclosed that the assured was suffering as a result of this experience. The policy is a New York contract. No point was made at the trial concerning the injury sustained or the length of disability, the sole question being whether the facts stated warranted a recovery under the policy."
Judgment was entered for the plaintiff. The defendant appeals.
The point made on the appeal is that the court erred in finding against the defendant in that there are no facts to support the only proposition upon which liability could rest, namely, that the injury arose, directly and independently of all other causes, through accidental means. A chance happening, commonly called an accident, may occur otherwise than by accidental means. The distinction was drawn in United States Mutual Accident Association v. Barry, 131 U.S. 100, 121; 33 L. Ed. 60, 67, wherein it was said "that if a result is such as follows from ordinary ...